Some will point out that it embodies the fears patent holders had regarding the UPC system, which explains the large number of “carve-outs” prior to its entry into force. At the same time, while it is true that caution is always advisable and that using this jurisdiction involves more risk than multiple national lawsuits within European territory (i.e., cross-border actions), I’m not sure the case reported here can be considered a typical example. Indeed, it is a major case in which similar patents were claimed for different territories and, unfortunately for the patent holder, where different jurisdictions have already taken a position identical to that of the Paris local division. Without delving into the substantive debate, it is worth noting that German and English judges—often cited, rightly or wrongly, as “pro-patent”—had already adopted similar positions to the Paris judges for national parts of the same European patent (a cancellation ruling by the English High Court and an unfavorable preliminary opinion by the German Federal Patent Court).
It can also be noted that the costs to be reimbursed will be determined in a separate proceeding and that the Paris division rejected the €100,000 provision requested by ABBOTT, as, according to the Court, the provisional award was not sufficiently substantiated by the claimant.
Ultimately, the decision rendered by the Paris local division appears to simply follow the precedent set by prior rulings concerning the EP'866 patent. However, this position could change in Luxembourg if DEXCOM files an appeal.
